September 2021 E-Update


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New NLRB GC Intends to Seek Case Law Reversals That Will Benefit Unions

On August 12, 2021, the recently confirmed General Counsel (GC) of the National Labor Relations Board (NLRB), Jennifer Abruzzo, issued her first official memo. Per an NLRB press release, GC Memo 21-04 “lays out a clear agenda…on some priorities of the Office of the General Counsel.” The memo directs NLRB field offices to submit cases addressing issues identified in the memo to the Regional Advice Branch of the Office of the General Counsel. Often, such submissions are the first step on the path to overturning existing case law that a sitting GC seeks to change. For more, click here.

What the Federal Guidance on President Biden’s Vaccine Mandate Means for Government Contractors

The Safer Federal Workforce Task Force released mandatory guidelines for federal contractors, implementing President Biden’s Executive Order requiring contractor employees to be vaccinated against COVID-19 (as discussed in our September 10, 2021 E-lert). For what this means for government contractors, click here.

NLRB General Counsel Directs Regions to Pursue Full Remedies Against Employers

This month, National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo issued two GC memos providing guidance to Regional Offices concerning what remedies should be sought when an employer has violated the National Labor Relations Act (NLRA). Specifically, GC Abruzzo directs Regions to seek the “full panoply of remedies available” to ensure that victims of unlawful conduct are made whole. GC Memo 21-06 discusses remedies that Regions should request that Board include in any order finding an employer has violated the NLRA. GC Memo 21-07 addresses the remedies that Regions should include in settlement agreements. For more, click here.


DOL Issues Final Rule Increasing Protections for Tipped Workers. In the ongoing saga of the tipped worker regulations, the U.S. Department of Labor released a Final Rule that expanded its ability to seek civil money penalties against employers, among other things. For more, click here.

DOL Announces “Enhanced, Expanded Measures” on Worker Protections from Heat-Related Hazards. Following a September 20, 2021 “Statement by President Joe Biden on Mobilizing the Administration to Address Extreme Heat,” the U.S. Department of Labor has taken several actions intended to combat the hazards associated with workplace exposure to extreme heat, both indoors and out. For more, click here.

More Updates for Government Contractors. Many things of interest to government contractors happened this month, beyond the vaccination guidance discussed elsewhere in this E-Update. For more, click here.

Telework and Modified Schedules Are Not Reasonable Accommodations If the Employee Cannot Perform Their Essential Functions. In the context of the increase in telework during the pandemic and burgeoning requests from employees to continue telework as a reasonable accommodation, the U.S. Court of Appeals for the Tenth Circuit issued a case confirming the point that an accommodation, including telework or a modified schedule, is not reasonable if the employee is unable to perform the essential functions of their job. For more, click here.

Title VII Does Not Protect Need for Childcare or Requesting Time Off for Childbirth. As the U.S. Court of Appeals for the Tenth Circuit explained, Title VII prohibits discrimination on the basis of sex, which includes pregnancy, childbirth, and related medical conditions, but not childcare per se. And protected activities under Title VII are limited to opposing unlawful activity under Title VII or participating in an investigation, proceeding or hearing regarding the same. For more, click here.

Only “Extreme Hostility” Defeats the “Strong Preference for Reinstatement” as a Remedy. Although most employers would prefer not to reinstate an employee who has engaged in successful litigation against them, they may be required to do so in circumstances short of “extreme hostility,” explained the U.S. Court of Appeals for the Tenth Circuit. For more, click here.

The Employee Is Not Entitled to Their Preferred Accommodation – Only a Reasonable One. A recent case is a good reminder to employers that, while the Americans with Disabilities Act requires employers to provide disabled employees with reasonable accommodations to enable them to perform their essential job functions or enjoy the privileges and benefits of employment, the choice of accommodation is the employer’s – not the employee’s. For more, click here.

TOP TIP: Employers Beware! Private Arbitration Agreements Won’t Stop DOL Lawsuits

The U.S. Department of Labor recently highlighted a federal court ruling that private arbitration agreements will not prevent the federal Secretary of Labor from bringing suit against an employer for violation of the Fair Labor Standards Act (and presumably other federal laws within the DOL’s jurisdiction, like the Family and Medical Leave Act). For more, click here.